United States District Court, C.D. California
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
PHILIPS S. GUTIERREZ, UNITED STATES DISTRICT JUDGE
Pursuant
to 28 U.S.C. § 636, the Court has reviewed the Petition,
the other records on file herein, and the Report and
Recommendation of the United States Magistrate Judge
("R&R," ECF No. 30). The Court also has
reviewed Petitioner's objections to the R&R
("Objections," ECF No. 33), as well as
Petitioner's other filings postdating the filing of the
R&R.
As
required by Federal Rule of Civil Procedure 72(b)(3), the
Court has engaged in de novo review of the portions
of the R&R to which Petitioner specifically has objected.
The objections generally reiterate arguments made in
Petitioner's substantive briefs (see generally
ECF Nos. 1, 28), and they lack merit for the reasons set
forth in the R&R. Below, the Court addresses arguments
Petitioner first asserts in the Objections and the
post-R&R filings.
Petitioner's
Objections present a flurry of stream-of-consciousness
allegations showing errors in the state-court proceedings. He
asserts that his appointed trial counsel or appellate counsel
was incompetent and filed a deficient appeal. (Objections
2-3, 5-6.) Petitioner alleges that the sentence the judge
imposed was "only obvious out of personal spite from
judge, against Petitioner." (Id. at 8.)
Petitioner also mentions some trial proceedings, including a
motion for a change of venue, motion for a Marsden
hearing, and request for "Re Appointed Attorney."
(Id. at 4.) Additionally, Petitioner seems to argue
that a state court judge's impartiality "might and
should be questioned," noting that the trial judge made
inappropriate comments and may have known a juror; that he
should have been given "foreign country consulate's
assistance"; that he was denied due process because of
his "inability to comprehend the English and law
language"; that he has been deprived of his rights under
the Equal Protection Clause of the Fourteenth Amendment; and
that the prosecutor committed misconduct because he was
driven by money "to imprison regardless of right and
wrong only to discriminate against minorities."
(Id. at 4-8, 10.) The allegations here are not
pertinent to the single claim in the operative Petition,
which challenges the state appellate court's decision not
to remand his case for resentencing as a denial of his
federal right to due process. (See Petition 6;
see also LD 10, at 8-18.) The Court declines to
exercise its discretion to entertain these unsupported,
unsubstantiated allegations, which Petitioner first raised in
his Objections. See United States v. Howell, 231
F.3d6l5, 622 (9th Cir. 2000); see also, e.g., Blunk v.
Ryan, 728 Fed.Appx. 736, 737 (9th Cir. 2018) (declining
to consider "brand-new stand-alone claim for relief that
could have been raised long before the magistrate judge
considered his habeas petition" but instead was raised
"for the first time in his objections").
Petitioner
objects to the R&R by arguing that his appellate counsel
was ineffective because he failed to predicate
Petitioner's resentencing argument before the Court of
Appeal on an alleged violation of his Fourteenth Amendment
rights. (Objections 3.) The Magistrate Judge made this
observation to establish the standard of review of
Petitioner's claim. (See R&R 5.) To the
extent Petitioner challenges the standard of review, the
Court concludes that de novo review is appropriate.
To the extent Petitioner claims ineffective assistance of
counsel on this basis for the first time in the Objections,
the Court declines to consider this new claim. See
Howell, 231 F.3d at 622; Blunk, 728 Fed.Appx.
at 737.
Petitioner
argues that the Court of Appeal's decision not to reach
the question of whether California Penal Code section 1385
applied retroactively to Petitioner's case
"indicates that you have not yet fully agreed with the
Attorney General that given the court's decision to
impose the upper term on both enhancement's [sic] in
addition to the maximum term of the substantive charge."
(Objections 3.) Like the Court of Appeal, this Court does not
reach-and does not need to reach-the question of whether
Penal Code section 1385 applies retroactively to deny
Petitioner's requested relief. (See generally
R&R 6-11.)
Finally,
in Petitioner's recent filings (ECF Nos. 31, 36),
Petitioner has requested a stay and abeyance of this action.
The Court observed that Petitioner neither clearly
articulated whether he sought a stay or an extension of time,
nor provided a legal argument supporting a request for a
stay. (ECF No. 34, at 1-2.) The Court also noted that the
Petition is fully exhausted and that the case was nearly
ready for final disposition. (See ECF No. 34, at 2.)
Regardless, the Court invited Petitioner to file a motion to
amend his Petition or move for a stay. (Id.)
Petitioner failed to do so in the time permitted by the
Court.
To the
extent Petitioner requests a stay in his post-R&R
filings, Petitioner's request must be denied. A district
court may stay and abey a federal proceeding in order to
allow a petition to exhaust claims in state court if the
petitioner shows (1) there is "good cause" for the
petitioner's failure to exhaust his claims earlier; (2)
the unexhausted claims are not "plainly meritless";
and (3) the petitioner has not engaged in "abusive
litigations tactics or intentional delay." Rhines v.
Weber, 544 U.S. 269, 277-78; accord Dixon v.
Baker, 847 F.3d 714, 720 (9th Cir. 2017).
As a
preliminary matter, Petitioner has not sought leave from this
Court, or Respondent's written consent, to amend his
Petition to add claims for which he now requests a stay.
See Fed. R. Civ. P. 15(a)(2). The operative
Petition, as filed, is fully exhausted. Accordingly, a
Rhines stay is not appropriate. See Rhines,
544 U.S. at 275-76; Mena v. Long, 813 F.3d 907, 912
(9th Cir. 2016).
Liberally
construing Petitioner's request as a motion to stay the
case pursuant to Rhines and to amend the Petition,
the request must be denied because Petitioner has not
identified any unexhausted claim he seeks to exhaust in state
court or add to the Petition. (See Objections 9
("My recommendation is a prayer in legal sense to be
granted stay and abey to deconstruct to reconstruct and
rebuttal on state courts."); ECF No. 31, at 1 (titling
document "Objections to the Report and Recommendation
and Motion to Stay and Abeyance" without stating any
claims for which he seeks to stay and abey the action); ECF
No. 36, at 4-5 (referring to "proposed claims"
without identifying any such claims).) To the extent
Petitioner seeks to prosecute his allegations in the
Objections relating to irregularities in the trial
proceedings, judicial bias or misconduct, prosecutorial bias
or misconduct, or ineffective assistance of counsel,
Petitioner fails to support his claims with citations of the
record or other supporting evidence. (See Objections
4-8, 10.) Petitioner's vague references to additional
claims he may seek to pursue are far too cursory to merit
habeas relief. See Greenway v. Schriro, 653 F.3d
790, 804 (9th Cir. 2011) ("[Petitioner's] cursory
and vague claim cannot support habeas relief.");
James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)
("Conclusory allegations which are not supported by a
statement of specific facts do not warrant habeas
relief.").
Further,
Petitioner's unclear references to underdefined
additional claims are not sufficient to meet his burden to
show "his claims are not plainly meritless," so a
Rhines stay is inappropriate. Dixon, 847
F.3d at 720; see also Rhines, 544 U.S. at 277.
Finally, the Court declines to exercise its discretion to
issue a stay pursuant to its inherent authority to control
its docket. See Landis v. N. Am. Ca, 299 U.S. 248,
254-55 (1936).
IT
THEREFORE IS ORDERED that (1) the Report and Recommendation
of the Magistrate Judge is accepted and adopted; and (2)
Judgment shall be entered denying the ...